Note:OGC is the EPA Office of General CounselOARM is the EPA Office of Administration and Resources ManagementOSW is the EPA Office of Solid WasteDOD is the Department of DefenseGSA is the General Services Administration_______________________________________________________________________________________

UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY

WASHINGTON, D.C. 20460

December 23, 1988

MEMORANDUM

SUBJECT: Procurement Guidelines

TO:
Matthew Straus

FROM: William Sanjour

You have asked me to write up my view of the problems
we are having in the procurement guideline workgroup with OGC and OARM.
In a nutshell it is this: if we go along with OARM and OGC's demands for
changes in the procurement guidelines, EPA will be in the absurd position
of having put the people Congress intended to regulate in charge of writing
the regulations.

The persons being regulated under section 6002 of
RCRA are "procuring agencies", that is, basically, government procurement
officials. Congress has passed laws requiring procurement guidelines to
be written even before the creation of EPA. These guidelines were supposed
to cause procuring agencies to procure recycled products. In the past,
EPA either ignored the requirement or wrote weasel worded guidelines with
no teeth. Procuring agencies for the most part ignored the guidelines.

Every few years, a disgusted Congress, seeing nothing
happening and prodded by recycling industries, would pass stronger legislation,
and EPA and the procuring agencies would continue to ignore them or get
around them. The last revision of the law was the HSWA
amendments of 1984. The new law had a lot of teeth in it, but EPA proposed
a guideline for paper in April of 1985, which thwarted the law and would
have let the procuring agencies off the hook.

This outraged the recycling community and the Congressional
sponsors of the procurement guidelines. They called the Director of OSW
on the carpet and he promised to re-propose a paper procurement guideline
with teeth in it. It was at that point that I was put in charge of the
procurement guideline program. I was told by my management that the Agency
took the guidelines seriously and that I was to issue meaningful guidelines
that would have a real effect on reducing the solid waste stream. These
instructions have never changed. Shortly after that, EPA rediscovered municipal
solid waste and the procurement guidelines program took on new importance.

One of the chief problems I found was that the legislative
language of section 6002 is badly drafted. One could ignore that and proceed
to issue guidelines which would be so full of ambiguities and loopholes,
that no procurement agency need take them too seriously (as was done with
the original proposed paper guideline). I chose instead to go out of my
way to try to resolve the ambiguities and close the loopholes. Let me illustrate
two such problems which we addressed and which are among the issues now
being re-opened by OGC and OARM.

Section 6002(d)(2) requires "Federal agencies" to
revise their specifications, once EPA issues a procurement guideline, so
as to assure the maximum use of the material designated in the guideline.
Section 6002(i) requires that, once EPA issues a procurement guideline,
"procuring agencies" are to institute an affirmative procurement program
which will assure that the designated item is procured to the maximum extent
practicable. The trouble is that the tern "procuring agency" is defined
in the law to include more than "Federal agencies". It includes states,
counties and even contractors under some circumstances. But if states,
for example, are not required to revise their specifications under section
(d), they need only cite the lack of a specification for failing to implement
the provisions of (i).

We corrected this loophole by interpreting the law
so as to apply the provisions of section (d)(2) to "procuring agencies"
and not just "Federal agencies". This was first done in the re-proposed
paper procurement guideline. OGC reviewed the decision and agreed that
it was a legally defensible position. Since then it has appeared in the
final paper guideline, the proposed asphalt rubber guideline, the proposed
and final oil guideline, the proposed and final tire guideline and the
proposed insulation guideline. Each time it was reviewed and accepted by
OGC. Three different OGC counsels have passed on it. There have been five
opportunities for public comment and three opportunities for a lawsuit,
yet no one, until now, has ever challenged our position.

A second issue is in the use of the word "specification".
Section 6002(d) requires specifications which discriminate against recovered
materials, to be revised. A great many of the procurement practices which
unfairly discriminate against recovered materials are not labeled "specifications".
For example, GSA gave us a memorandum from their administrator instructing
them not to use retread tires on passenger vehicles. They cited this as
a reason why they could not comply with the guideline. Our position is
that Congress included such documents in the term "specification" even
though it is not a specification in procurement jargon.

The example which triggered this was the fact that
DOD let out such huge nationwide contracts for oil, that small recycling
firms could not bid on the whole package. We took the position that this
practice discriminated against recovered oil and was a procurement specification
in the sense that congress intended and should be revised. Again, OGC reviewed
our position in the oil guideline and affirmed that it was legally defensible.
This position was in the proposed and final oil guideline, and the proposed
and final tire guideline, and the proposed insulation guideline. As with
the other example, this interpretation has never been challenged outside
or inside the Agency until it was recently challenged by the OARM OGC team.

The only public comment we have ever received on
this issue is when, by mistake, we changed the language in the proposed
insulation guideline from "must" to "should", the very change that OARM
and OGC are now advocating. We received a docket comment from the people
who are suing us challenging that wording.

I would like to make clear just what is at stake
here. To illustrate, let's review what we went through in issuing the tire
guideline. GSA fought us on this every inch of the way. They had numerous
meetings, bringing in people from all over. The docket is full of their
letters. They made phone calls. They presented one excuse after another
about why they could not buy retread tires.

Retreads are unsafe. We have no specifications. The National
Highway Traffic Safety Administration says we can't. The Administrator
says we can't. We can't warehouse tires. There's too much variability in
quality. It will hurt small businesses. It will raise cholesterol levels.
Et cetera, et cetera, et cetera.

The final guideline addressed every one of their excuses,
and disallowed every one of them. We left them no room to wiggle. Today
GSA is marshaling its efforts to figure out how to comply with the guideline.
Task forces are being organized, people are being shuffled around and reorganized.
In other words they are doing the things that bureaucracies do to cope
with a new responsibility. The phone calls we get from GSA are no longer
saying "we can't" but "how do we?"

Would we have gotten this kind of turn around if
we had used the kind of weasel words that OARM and OGC now want us to use?
I doubt it. The public always complains that it cannot understand the rules
that we bureaucrats write, but bureaucrats understand what bureaucrats
write. If we had put in the weasel words, if we had left GSA with wiggle
room, they would have recognized it as the equivalent of a wink and a nod
which says in effect "we've got to put out this crap to humor Congress,
but you guys don't really have to do anything." Instead, the message GSA
got when they read the guideline was, "these guys aren't kidding, they
really mean it" and they acted accordingly.

Look at what's happening at the state and county
level. Our consultant Nancy VandenBerg, who works closely with state and
locals in establishing recycling programs, tells me that the guidelines
have had a strong influence in getting states and counties to set up procurement
programs for recovered materials. In most jurisdictions, just as in the
Federal government, there are those who want to do the recycling thing
and those who think it's too much bother. Nancy tells me the guidelines
frequently tip the balance because the ones who want to do wave it and
saying "the Feds say we got to do it, we got no choice." Nancy tells me
she's been told that if the guideline said "should" instead of "must" it
wouldn't have worked.

In other words, what is at stake here is whether
we are going to issue meaningful effective guidelines or whether we're
just going to play silly meaningless bureaucratic games.

Why are OGC and OARM doing this? Eleanor Norment,
the OARM representative is an EPA procurement official. Thomas Doherty,
the OGC representative, is a procurement attorney. Eleanor Norment refers
to Thomas Doherty as her counsel. These people were placed on our workgroup
by order of the EPA Steering Committee. As I pointed out earlier, procurement
officials are the very people we are supposed to be regulating. They are
the people who, for many years, Congress has been trying to get to buy
recycled goods, with no result. Even EPA procurement and grants officials
ignore EPA's procurement guidelines. Now they are members of our workgroup.
Furthermore, the counsel for the regulated community is also the spokesman
for the EPA Office of General Counsel.

Their behavior on the workgroup is not what one would
expect of a workgroup member. It is what one would expect of someone we
are trying to regulate and who doesn't want to be regulated. They are forever
raising issues, asking questions, and pointing out flaws. When asked to
suggest solutions to the problems they raise, they are indignant and almost
never do so. When they do offer solutions, it is usually some weasel worded
cop-out. When we suggest a solution, their response is "well let's look
at this other problem." When we ask them to write up specific language
which meets their requirements, they are too busy. But they never seem
too busy to request more meetings to go over the same ground time after
time, or to pursue some bit of minutia ad infinitum. When we take our own
time to draft specific language to attempt to address their concerns their
reaction is "we'll have to think about it."

I'm not saying they are bad people. I believe they
are honestly, forthrightly and even competently doing what they believe
they are supposed to be doing, i.e., protecting the interests of the Federal
procurement community. As such, though, they have repeatedly shown no concern
for what I view as EPA's interests, i.e., they are not interested in issuing
an effective guideline or any guideline at all, they are not concerned
with recycling, they don't care about the landfill crisis, they know nothing
of EPA's commitment to help solve municipal waste disposal problems, and
they don't seem to care that the Administrator is under a court ordered
deadline which they may very well cause him to miss.

As of right now, only one issue remains formally
unresolved in the insulation guideline. This is the second of the two issues
discussed above. The other issue has, by agreement, been deferred to the
policy paper workgroup. However, OGC has told us that they will have more
issues and have called for still another workgroup meeting on Thursday,
December 29.